IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Civil Revision No. 172 of 2018 Date of Decision: 17.12.2025 Renu Gujral .....Petitioner. Versus Chander Kanta (Deceased) through LRs. …..Respondents. Coram The Hon’ble Mr. Justice Bipin Chander Negi, Judge. Whether approved for reporting?1 For the Petitioner: Mr. Sudhir Thakur, Sr. Advocate with Mr. Karun Negi, Advocate. For the Respondents: Mr. Ashwani Kaundal, Advocate. Bipin Chander Negi, Judge The present petition has been filed against the impugned judgment dated 27.06.2018, passed by the learned Appellate Authority-III, Solan, District Solan, HP in a rent Appeal No.2-ADJ-II/14 of 2014, whereby the appeal preferred by the present petitioner against order dated 21.04.2018, passed by the learned Rent Controller-II, Solan, District Solan, HP has been dismissed. 2. Heard counsel for the parties, perused the impugned order and the documents appended along with the present petition. 3. Eviction, in the case at hand was sought on the ground of subletting. In the eviction petition, it was averred that the present petitioner/tenant was running a 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 mobile shop in the tenanted premises in the name and style of ‘Mobile World and Gift Gallery.’ The said shop had been given to the petitioner/tenant vide a rent agreement dated 01.08.2012. It was alleged that the petitioner/tenant sublet the premises to one Sh. Kalam Singh in the month of February, 2014 and thereafter said Sh. Kalam Singh was running the mobile shop in the name and style ‘Mobile World and Gift Gallery.’ 4. In response filed, subletting by the present petitioner/tenant to one Sh. Kalam Singh was denied. It was categorically averred that the present petitioner/tenant was carrying the business in the name and style of ‘Mobile World and Gift Gallery’ for the last many years. 5. In the replication contents of the eviction petition were reiterated and those contrary were denied. The issues were framed on 04.04.2015. Parties went to the trial. The trial Court post considering the evidence on record, evicted the present petitioner/tenant on the ground of subletting on 21.04.2018. Aggrieved by the same, an appeal was preferred and the same was dismissed vide judgment dated 27.06.2018. It is in the aforesaid facts 3 and attending circumstances, the present revision petition has been preferred. 6. Learned Senior Counsel for the petitioner/tenant submits that parting of possession of tenancy in favour of 3rd party with exclusive right of possession has not been established by the landlord/respondent in the case at hand and therefore, the eviction order passed in the case at hand need to be set aside. 7. Per contra, learned counsel for the respondent/landlord submits that sub-tenancy is created in a clandestine manner and therefore, subletting can be proved on the basis of legitimate inferences. Other than the aforesaid, he submits that reappreciation of evidence under the Rent Act as applicable to the State is not permissible in a revisional jurisdiction. 8. This Court in exercise of its revisional jurisdiction cannot interfere with the findings of fact recorded by the first appellate Court/first appellate authority because on reappreciation of the evidence, the Rent Act as applicable to the State does not entitle this Court to interfere with the findings of fact recorded by the first appellate authority merely because on reappreciation of the evidence, its views may be different from the authority below. 4 9. The legal position has been summed up by the Hon’ble Supreme Court in a Constitution Bench decision in Hindustan Petroleum Corporation Limited versus Dilbahar Singh (2014) 9 SCC 78 wherein it was observed as under:- “43. We hold, as we must, that none of the above Rent Control Acts entitles the High Court to interfere with the findings of fact recorded by the First Appellate Court/First Appellate Authority because on re-appreciation of the evidence, its view is different from the Court/Authority below. The consideration or examination of the evidence by the High Court in revisional jurisdiction under these Acts is confined to find out that finding of facts recorded by the Court/Authority below is according to law and does not suffer from any error of law. A finding of fact recorded by Court/Authority below, if perverse or has been arrived at without consideration of the material evidence or such finding is based on no evidence or misreading of the evidence or is grossly erroneous that, if allowed to stand, it would result in gross miscarriage of justice, is open to correction because it is not treated as a finding according to law. In that event, the High Court in exercise of its revisional jurisdiction under the above Rent Control Acts shall be entitled to set aside the impugned order as being not legal or proper. The High Court is entitled to satisfy itself the correctness or legality or propriety of any decision or order impugned before it as indicated above. However, to satisfy itself to the regularity, correctness, legality or propriety of the impugned decision or the order, the High Court shall not exercise its power as an appellate power to reappreciate or re-assess the evidence for coming to a different finding on facts. Revisional power is not and cannot be equated with the power of reconsideration of all questions of fact as a court of first appeal. Where the High Court is required to be satisfied that the decision is according to law, it may examine whether the order impugned before it suffers from procedural illegality or irregularity.” 5 9. It is the case of the landlord/Respondent that sub- tenancy in the present case has been created in a clandestine manner and, therefore, subletting can be proved on the basis of legitimate inferences. The Hon’ble Supreme Court has dealt with the issue of subletting as clandestine arrangements between the tenant and subtenant and the kind of evidence required to establish the same in S.F. Engineer versus Metal Box India Limited and Another (2014) 6 SCC 780 relevant extract of which is being reproduced hereinbelow:- “19. In Smt. Rajbir Kaur and another v. S. Chokesiri and Co.(1989) 1 SCC 19, after referring to the decision in Dipak Banerjee v. Smt. Lilabati Chakraborty (1987) 4 SCC 161 and other decisions the Court opined that (Rajbir Kaur case, SCC p.43, para 59) “59……If exclusive possession is established, and the version of the respondent as to the particulars and the incidents of the transaction is found acceptable in the particular facts and circumstances of the case, it may not be impermissible for the court to draw an inference that the transaction was entered into with monetary consideration in mind.” It has been further observed that: (Rajbir Kaur case, SCC p.43, para 59) “59…..Such transactions of subletting in the guise of licences are in their very nature, clandestine arrangements between the tenant and the subtenant and there cannot be direct evidence got and it is not, unoften, a matter for legitimate inference.” Dealing with the issue of burden it held that:(Rajbir Kaur case, SCC p.43, para 59) “59…..The burden of making good a case of subletting is, of course, on the appellants. The burden of establishing facts 6 and contentions which support the party’s case is on the party who takes the risk of non- persuasion. If at the conclusion of the trial, a party has failed to establish these to the appropriate standard, he will lose. Though the burden of proof as a matter of law remains constant throughout a trial, the evidential burden which rests initially upon a party bearing the legal burden, shifts according as the weight of the evidence adduced by the party during the trial.” 20. In this context, reference to a two-Judge Bench decision in Bhairab Chandra Nandan v. Ranadhir Chandra Dutta (1988) 1 SCC 383 would be apposite. In the said case the tenant had permanently shifted his residence elsewhere leaving the rooms completely to his brother for his occupation without obtaining the landlord’s permission. In that context, the Court observed thus: (SCC pp. 387-88, para 5) “5. Now coming to the question of sub-letting, once again we find that the courts below had adequate material to conclude that the respondent had sub-let the premises, albeit to his own brother and quit the place and the subletting was without the consent of the appellant. Admittedly, the respondent was living elsewhere and it is his brother Manadhir who was in occupation of the rooms taken on lease by the respondent. The High Court has taken the view that because Manadhir is the brother of the respondent, he will only be a licensee and not a subtenant. There is absolutely no warrant for this reasoning. It is not as if the respondent is still occupying the rooms and he has permitted his brother also to reside with him in the rooms. On the contrary, the respondent has permanently shifted his residence to another place and left the rooms completely to his brother for his occupation without obtaining the consent of the appellant. There is therefore no question of the respondent’s brother being only a licensee and not a sub- tenant.” 21. In M/s. Shalimar Tar Products Ltd. v. H.C. Sharma and others(1988) 1 SCC 70 while dealing with parting of legal possession, the two-Judge Bench observed that:(SCC p.78, para 17) 7 “17…..There is no dispute in the legal proposition that there must be parting of the legal possession. Parting to the legal possession means possession with the right to include and also right to exclude others.” 22. In United Bank of India v. Cooks and Kelvey Properties (P) Limited (1994) 5 SCC 9 the question arose whether the appellant- Bank had sublet the premises to the union. This Court set aside the order of eviction on the ground that : (SCC pp. 13-14, para 10) “10....though the appellant had inducted the trade union into the premises for carrying on the trade union activities, the bank has not received any monetary consideration from the trade union, which was permitted to use and enjoy it for its trade union activities. It is elicited in the cross- examination of the President of the trade union that the bank had retained its power to call upon the union to vacate the premises at any time and they had undertaken to vacate the premises. It is also elicited in the cross-examination that the bank has been maintaining the premises at its own expenses and also paying the electricity charges consumed by the trade union for using the demised premises. Under these circumstances, the inference that could be drawn is that the appellant had retained its legal control of the possession and let the trade union to occupy the premises for its trade union activities. Therefore, the only conclusion that could be reached is that though exclusive possession of the demised premises was given to the trade union, the possession must be deemed to be constructive possession held by it on behalf of the bank for using the premises for trade union activities so long as the union used the premises for trade union activities. The bank retains its control over the trade union whose membership is only confined to the employees of the bank. Under these circumstances, the inevitable conclusion is, that there is no transfer of right to enjoy the premises by the trade union exclusively, for consideration.” 23. In this context we may fruitfully refer to the decision in Joginder Singh Sodhi (supra) wherein the Court, dealing with the concept of subletting, has observed that to establish a plea of subletting two ingredients, namely, parting with possession and 8 monetary consideration, therefor have to be established. In the said case reliance was placed on Shama Prashant Raje v. Ganpatrao (2000) 7 SCC 522 and Smt. Rajbir Kaur (supra). The Court also extensively referred to the principle stated in Bharat Sales Ltd. (supra) wherein it has been observed that it would also be difficult for the landlord to prove, by direct evidence, that the person to whom the property had been sub-let had paid monetary consideration to the tenant. Though payment of rent, undoubtedly, is an essential element of lease or sub-lease, yet it may be paid in cash or in kind or may have been paid or promised to be paid, or it may have been paid in lump sum in advance covering the period for which the premises is let out or sub-let or it may have been paid or promised to be paid periodically. The Court further observed that since payment of rent or monetary consideration may have been made secretly, the law does not require such payment to be proved by affirmative evidence and the court is permitted to draw its own inference upon the facts of the case proved at the trial, including the delivery of exclusive possession to infer that the premises were sub-let. 24. In this regard reference to Celina Coelho Pereira (Ms) and others v. Ulhas Mahabaleshwar Kholkar and others (2010) 1 SCC 217 would be pertinent. In the said case a two-Judge Bench, after referring to number of authorities and the rent legislation, summarized the legal position relating to issue of sub-letting or creation of sub-tenancy. The two aspects which are of relevance to the present case are: (SCC p.231, para 25) “(i) In order to prove mischief of sub-letting as a ground for eviction under rent control laws, two ingredients have to be established: (i) parting with possession of tenancy or part of it by the tenant in favour of a third party with exclusive right of possession, and (two) that such parting with possession has been done without the consent of the landlord and in lieu of compensation or rent. (ii)-(iv) * * * (v) Initial burden of proving sub-letting is on the landlord but once he is able to establish that a third party is in exclusive possession of the premises and that tenant has no legal possession of the tenanted premises, the onus shifts to the tenant to prove the nature of occupation of such third 9 party and that he (tenant) continues to hold legal possession in tenancy premises.” 25. In Vinaykishore Punamchand Mundhada and another v. Shri Bhumi Kalpataru and others (2010) 9 SCC 129 it has been held that : (SCC. 136, para 18) “18. it is well settled that sub-tenancy or sub-letting comes into existence when the tenant voluntarily surrenders possession of the tenanted premises wholly or in part and puts another person in exclusive possession thereof without the knowledge of the landlord. In all such cases, invariably the landlord is kept out of the scene rather, such arrangement whereby and whereunder the possession is parted away by the tenant is always clandestine and such arrangements takes place behind the back of the landlord. It is the actual physical and exclusive possession of the newly inducted person, instead of the tenant, which is material and it is that factor which reveals to the landlord and that the tenant has put some other person into possession of the tenanted property.” It has been further observed that (SCC pp.136-37, para 19) “19….It would not be possible to establish by direct evidence as to whether the person inducted into possession by the tenant had paid monetary consideration to the tenant and such an arrangement cannot be proved by affirmative evidence and in such circumstances the court is required to draw its own inference upon the facts of the case proved at the enquiry.” 10. In view of the aforesaid it can be safely concluded that for establishing mischief of sub-letting as a ground for eviction under rent control laws, two essential ingredients must be satisfied. First, the tenant must have parted with possession of the tenancy, or a part thereof, in favour of a third party conferring an exclusive right of possession and second, such 10 parting with possession must have occurred without the landlord’s consent and in lieu of compensation or rent. While the initial burden of proving sub-letting rests upon the landlord, once it is demonstrated that a third party is in exclusive possession of the premises and that the tenant has relinquished legal possession, the onus shifts to the tenant to explain the nature of the third party’s occupation and to affirm that the tenant retains legal possession of the tenanted property. Notably, the law does not mandate this to be proved by direct affirmative evidence rather, the court is empowered to draw reasonable inferences from the facts proved at trial, including the circumstance of exclusive possession being delivered, to conclude that the premises were sub-let. 11. Upon a careful examination of the concurrent judgments of the courts below and the evidence on record, this Court finds that the Rent Controller and the Appellate Authority have correctly applied these settled legal principles governing sub- letting under the rent control laws. The documentary evidence proving the electricity meter (RR No. 270) for the shop in question stands in the name of the alleged sub-tenant, Sh. Kalam Singh Kairon, as conclusively established by the official testimony of PW-3 from the HPSEB, is a piece of evidence of high probative value. It directly links the third party to the essential utility services of the demised premises, strongly corroborating the assertion of his exclusive possession. The 11 attempted cross-examination of PW-3, is impermissible in terms of Section 139 read with section 162 of the Indian Evidence Act as the said PW-3 had been summoned to produce the record only. This crucial piece of evidence stands unrebutted. Conversely, the petitioner's own testimony as RW-1, wherein she claimed to have a separate meter in the name of one Narkeer Negi, was a bare and unsupported assertion. She led no evidence to substantiate this claim. In the face of the landlord's positive and documented evidence, such an unsubstantiated and self-serving statement is insufficient to create any doubt, let alone rebut the formidable presumption of sub-letting that had legitimately arisen. 12. The GPA of the landlord-respondent’s witness was examined as PW-1. His stand qua creation of a sub tenancy by the petitioner/tenant was consistent and duly corroborated by PW-2. Cross-examination of PW-1 was of no avail. The failure of the petitioner-tenant to cross-examine PW-2 on the specific allegation of sub-letting means that the statement of the witness has not been disputed as has been held by the Apex Court in Arvind Singh vs. State of Maharashtra, 2021 (11) SCC 1 and adverse inference must be drawn against her. The, learned counsel for the respondent is perfectly justified when he contends that the petitioner is required to stand on his own legs and not to take advantage of the weaknesses of the case of the opposite party. The onus to prove that the petitioner is a tenant 12 and is still in possession of the premises solely rests upon the tenant. 13. The legal presumption of sub-letting, including the element of monetary consideration, as direct proof of rent in such clandestine arrangements is neither mandated nor typically available. The onus having shifted, the petitioner’s solitary, self-serving testimony was wholly insufficient to rebut the formidable evidence led by the landlord. The requisite evidence for the tenant to prove that she was the one carrying out the business from the rented premises, would have been her books of accounts, bank accounts, income tax, sales tax, VAT returns and number of other documents. Having failed to do so, it can conveniently be held that the tenant has walked out of the premises and exclusive possession of the property has been given to a subtenant. 14. Consequently, it can be held that the essential ingredients of subletting stood proved and that the order of eviction passed by the Rent Controller as upheld by the First Appellate Court called for no interference and the present petition is dismissed being devoid of any merit. Pending miscellaneous application(s), if any, stand disposed of. (Bipin Chander Negi) Judge 17th December, 2025 (Gaurav Rawat)